Utah Gay Couple Seeking Parenting Rights Join Suit

SALT LAKE CITY -- A federal judge's decision to overturn Utah's same-sex marriage ban allowed Matthew Barraza and Tony Milner to do more than just get married. It opened the door for Milner to become legally recognized as the parent of their 4-year-old son.

The couple moved quickly to get adoption paperwork started so that Jesse, their blue-eyed, cowboy-boot-wearing little boy, could have both of his parents recognized, not just Barraza. But those plans were frozen after the U.S. Supreme Court brought gay marriages to a halt and Utah Gov. Gary Herbert instructed state agencies to stop granting gay and lesbian couples new benefits.

Now, Barraza and Milner are among hundreds of newly married gay and lesbian couples in Utah stuck in legal limbo. The couple is one of four in a new lawsuit filed Tuesday by the American Civil Liberties Union suing Utah over its decision not to recognize the gay marriages, which the ACLU claims has created wrenching uncertainty.

The state's decision prevents the couples from getting key protections for themselves and their children, the lawsuit says.

"Heaven forbid, if something should happen to one us, Jesse would have the security of having the other parent take care of him," said Milner, 34. "Now, because of the state's refusal to recognize our marriage, this peace of mind is once again out of reach."

The other couples in the lawsuit cited a range of concerns that include emergency medical decision-making and health insurance.

Marty Carpenter, the Utah governor's spokesman, responded by saying that Herbert "has said throughout this process that his responsibility is to follow the law. That is exactly what the administration is doing, and we respect the rights of those who disagree to take their grievances before a judge."

More than 1,000 gay and lesbian couples rushed to marry after a federal judge in Utah overturned the state's same-sex marriage ban on Dec. 20. U.S. District Judge Robert Shelby ruled that the ban violates gay and lesbian couples' constitutional rights. Those weddings came to a halt on Jan. 6 when the U.S. Supreme Court granted Utah an emergency stay, something two lower courts denied.

After the Supreme Court issued the stay, Herbert told state agencies to hold off on moving forward with any new benefits for the couples until the courts resolve the issue. Agencies were told not to revoke anything already issued, such as a driver's license with a new name, but they are prohibited from approving any new marriages or benefits. More recently, the state tax commission announced that newly married gay and lesbian couples can jointly file their taxes for 2013.

The state made clear it was not ordering agencies to void the marriages, saying instead that validity of the marriages will ultimately be decided by the Denver-based 10th U.S. Circuit Court of Appeals, which is weighing an appeal from the state.

John Mejia, legal director for the ACLU in Utah, disagreed with that assessment, saying the marriages performed during the 17-day window when gay marriage was legal are valid no matter what the court rules. He said the couples have vested rights in their new unions and should be able to move forward with efforts to make partners legal guardians of children or add their spouses to their health insurance or pension plans.

It could take more than a year for the courts to rule on Utah's same-sex marriage ban, especially if it moves to the U.S. Supreme Court, Mejia said.

"They've put a giant question mark over the lives of all these people that have married," Mejia said. "We're seeking a declaration that these valid marriages must be recognized."

Utah has 20 days to file a court response to the suit, said Salt Lake City attorney Erik Strindberg, who is working with the ACLU on the lawsuit. The state could ask a Utah judge to put the case on hold until the federal appeals court rules, Strindberg said. But the ACLU would fight such a request, he said.

The ACLU believes the federal government has taken the correct stance on the new marriages. U.S. Attorney General Eric Holder came out days after Herbert's decree and said the federal government will honor the gay marriages and grant benefits. That means that same-sex couples who were married in Utah can file federal taxes jointly, get Social Security benefits for spouses and request legal immigration status for partners, among other benefits.

There are currently 17 states that allow gay marriage, with Utah and Oklahoma in limbo pending decisions by appeals courts.

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Though they are not considered legally married in Utah, several gay and lesbian couples were feted with a wedding celebration as part of HBO’s promotion of its upcoming documentary on gay marriage, "The Case Against 8."